Where is Afari-Gyan? Supreme Court Judges Asks

Dr Kwadwo Afari Gyan, EC Boss

Dr Kwadwo Afari Gyan, EC Boss

The Supreme Court yesterday showed glimpses of what it is capable of in the landmark election petition when it inquired about the whereabouts of the Chairman of the Electoral Commission (EC) Dr. Kwadwo Afari-Gyan.

This was after the nine-member panel, chaired by Justice William Atuguba, had unanimously dismissed an application the EC filed to ask the court to vary the orders it earlier gave when setting out the mode of the trial.

The Query
After Justice Atuguba had read the ruling affirming its order of April 2, another panel member Justice Jones Victor Dotse wanted to know from counsel for the EC who the Returning Officer of the presidential election was.

Judge: Who is the Returning Officer of the Presidential election?

James Quarshie-Idun (Counsel):  the Returning Officer for the Presidential Election is Chairman of the Electoral Commission.

Judge: Mr. Quarshie-Idun, does it not concern you that since we started this case the Returning Officer has never set foot in this court?

Just as counsel attempted to give an inaudible answer to the question, Justice Anin-Yeboah, another panel member added, ‘He has not even sworn a single affidavit,’ in reference to Dr. Afari-Gyan.

EC’s U-turn
Following EC’s motion on notice, the court, which had fixed Tuesday April 16 as the definite date for the hearing of the election petition, had to recall the parties yesterday for it to hear the motion.

The EC had five days upon receipt of the affidavits from the three petitioners to file its particulars to enable definite hearing to begin next week Tuesday April 16.

However, the commission made a U-turn asking the court to vary its orders by allowing the petitioners to close their case before it (EC) is ordered to tender its evidence and other documents; a request the petitioners contested in their affidavit in opposition.

The courtroom was not packed as is usually the case and it might be due to the way the case was hurriedly recalled; but security was tight as usual.

NPP presidential candidate for December 2012 election, Nana Addo Dankwa Akufo-Addo (First petitioner), his running mate, Dr. Mahamudu Bawumia (Second petitioner) were in court while Yaw Buaben Asamoah announced himself as representing the party’s Chairman, Jake Otanka Obetsebi-Lamptey,  the Third petitioner.

None of the NDC executives who always throng the court was present, but the EC was represented by Amadu Sulley, a deputy Commissioner.

EC Moves Motion
Moving the motion, Mr. Quarshie-Idun said Order 33 Rule 4 (1) of C.I 47 gave direction as to the mode of trial and as a petition of first instance, Order 36 Rule 4 of C.I. 47 prescribed the direction of the trial.

According to the EC’s counsel, the petitioners had a ‘burden of proof or persuasion’ in the matter and the court needed to ask them to close their case before they (EC) should be asked to file their supporting affidavit.

‘Since in the instant suit, this honourable court is functioning as a trial court or a court of first instance, it is respectively requested that taking into account that the petitioners have a burden of proof or persuasion, the petitioners should be ordered to open their case, present their evidence (oral evidence and evidence of affidavit) and close their case before the Second respondent is required to open its case, present its evidence and close its case.’

He cited Sections 14 and 17 of the Evidence Act which put the burden of proof on the petitioners before the respondents could be asked to file their affidavits, saying, ‘We are urging the court to consider our application in that direction.

‘We are yet to be served with the affidavit filed by the petitioners. Will they be entitled to file supplementary affidavit? These are questions that could arise.’

He said if the petitioners were made to close their case before the EC files its affidavit, any documents obtained during cross-examination would be part of the number of documents to be filed.

According Mr. Quarshie-Idun, the order they are seeking ‘will not cause any delay or hinder the expeditious hearing of this case,’ adding, ‘While they close their case, we will be required to file ours within a short deadline.

‘It would avoid a bumpy ride and objections along the way,’ counsel submitted.

He said C.I. 47 was clear on the procedure for the trial saying, ‘We will come with our evidence at the appropriate time.’

Petitioners Oppose Application
Philip Addison, lead counsel for the petitioners, vehemently opposed the EC’s application, describing it as ‘a failed review application.’

‘The argument put forward this morning by the EC was strongly urged on this court by the First respondent’s (President Mahama’s) counsel (Tony Lithur) and it was refused. Today, the Second respondent (EC) comes to court to repeat the same argument.’

Mr. Addison said the court had already held that the case was going to be determined by affidavit evidence pursuant to C.I. 74 but the EC ‘has come here relying on C.I. 47 High Court Rules when specific arrangements had already been made.

‘It is a special kind of trial for which the rules have been made. The various orders cited is a matter determined by the court.’

Mr. Addison said Order 36 Rule 4 (1) cited by EC counsel related to addresses in the High Court saying, ‘At that stage, all parties have filed their pleadings, led evidence and addresses are to begin.’

He said ‘If their application is allowed, it will mean that the respondents will conduct their case at the back of the petitioners. They will file after the petitioners have closed their case.’

NDC Supports EC
Tsatsu Tsikata, counsel for the NDC, got up and told the court that ‘I would like to be heard on points of law relating to the matters in the application.’

Mr. Addison cut in to say that ‘I do not know if counsel (Tsikata) is going to support or oppose the application. If he is, he should have been allowed to speak before I responded to the Second respondent’s application. As it is, he is going to speak behind me.’

Mr. Tsikata said ‘it is important he allows me to speak,’ and before he could end his statement, Justice Atuguba said ‘you can go ahead.’

The NDC counsel said that the EC’s application had been brought under C.I. 47 and it was appropriate that reference was made to enable the court to conduct the trial.

He argued that per the court’s order, Article 133 (1) has been ‘overridden’ by C.I. 74, saying ‘any attempt to use C.I. 74 to override the power of review will be inappropriate.’

He said the EC’s application was not an application for review but one that was asking the court to vary its orders.

Mt. Tsikata said the court should take into consideration the realities on the ground before issuing out orders.

He said currently the court’s registry had not yet served the 3 rd respondent with the petitioners’ affidavits but admitted that ‘there is a lot of documentation that the registry has had to deal with,’ before urging the court to make the variations being proposed by the EC.

Addison’s Objection
Mr. Addison cut in again to complain to the court that Mr. Tsikata ‘is not restricting himself to factual matters.’

Justice Paul Baffoe-Bonnie, another panel member, came in to say that the court was very specific on the orders it gave saying, ‘We said five days after you have been served.’

In spite of the judge’s intervention, Mr Tsikata went ahead trying to draw the court’s attention to the fact that the petitioners party (NPP) was issuing press releases about issues that are before the court.

‘We are scandalised by their (NPP) propaganda,’ he said adding that ‘if we are not served on time we are likely to come on the hearing date and the case cannot go on.’

At this point, Justice Doste cut in to tell Mr. Tsikata that he should have allowed Justice Baffoe-Bonnie to complete his statement before interjecting, to which the NDC lawyer apologised.

He said, ‘We are eager for the case to start, but the realities on the ground may make things difficult. All we are saying is that if there is not a variation of the order, it will not benefit further hearing.’

Tony Lithur, representing President Mahama did not support or object to the EC’s application except to say that the EC’s counsel needed to clarify what was said.

EC’s Application Dismissed
After a long break, the court gave its unanimous ruling through Justice Atuguba who said ‘we do not think the court should shackle itself with interlocutory orders.’

The court said with regard to the objection to the propriety of the orders already given, ‘we hold that inherent orders do not operate in the face of express rules.’

It said C.I. 47 cited by the EC is ‘misconceived’ and cited a precedent in election petition in Nigeria where the court used special rules to dispense justice.

Justice Atuguba said the applicant could not expect that the petition was dealt with using ‘ordinary rules’ and added that all laws must ‘bow to the constitution’.

‘It is deducible that the presidential election petition must be dealt with in expeditious manner.

‘Application is without merit and same is dismissed,’ the court ruled.

By William Yaw Owusu